I was going to leave well enough alone with this NYT article on Anwar al-Awlaki, having criticized both its legal editorializing and its selective presentation of evidence against Awlaki. But since I suspect it is intended to prepare the ground for an Obama speech on targeted killing, I want to look at how assiduously the article hides Yemeni former President Ali Abdullah Saleh’s questionable commitment to our war on terror.

Let’s start by comparing this description of the May 25, 2010 drone strike that killed Saleh rival Jabir Shabwani from the WSJ:

On May 25, 2010, a U.S. missile attack killed at least six people including Jabir Shabwani, the 31-year-old deputy governor of Yemen’s central Mareb province. The Yemeni government provided intelligence used in the strike but didn’t say Mr. Shabwani would be among those there, say several current and former U.S. military officials.

These people say they believe the information from the Yemenis may have been intended to result in Mr. Shabwani’s death. “We think we got played,” said one participant in high-level administration discussions.

The government of President Ali Abdullah Saleh denies it used the U.S. campaign to eliminate a political rival or provided misleading intelligence. They say the president and other officials were furious when they learned of Mr. Shabwani’s death. Not all U.S. officials believe the U.S. was set up.

With the version the NYT gave us:

A disastrous American missile strike in May 2010 accidentally killed a deputy provincial governor in Yemen and infuriated President Saleh, effectively suspending the clandestine war.

While even the WSJ pays lip service to Saleh’s claim to be “furious,” the NYT not only completely ignores the widely held understanding that Saleh was not furious at all because he set up the attack, but claims Shabwani was only accidentally targeted.

The event is one of the signature examples of how our reliance on unreliable partners has contributed to counterproductive drone deaths. And yet the NYT doesn’t explain that part of the tragedy.

Likewise, the NYT expresses little curiosity as it describes one after another near misses of Awlaki (and Nasir Wuhayshi in the December 2009 attack), at least two led by Joint Special Operations Command, the part of DOD that was hunting Awlaki before the CIA took over the fight (I would also add the al-Majala killing to this, in which the US thought it was killing just militants but ended up killing a Bedouin tribe).

On Dec. 24, 2009, in the second American strike in Yemen in eight days, missiles hit a meeting of leaders of the affiliate group. News accounts said one target was Mr. Awlaki, who was falsely reported to have been killed.

[snip]

Mr. Awlaki appears to have hidden most of the time in Shabwa Province, several hours’ drive southeast of the capital, turf for Al Qaeda and also the traditional territory of his family’s powerful tribe, the Awaliq. Yemen’s cagey longtime president, Ali Abdullah Saleh, negotiated with tribal leaders, who offered to hold Mr. Awlaki under house arrest, according to a Yemeni official. The talks were inconclusive.

[snip]

In late 2010 or early 2011, Yemeni security troops surrounded a village in Shabwa Province where Mr. Awlaki was reported to be hiding, said Gregory Johnsen, a Princeton scholar and author of “The Last Refuge: Yemen, al-Qaeda, and America’s War in Arabia.” But a house-to-house search did not find him.

[snip]

In May 2011, days after the American commando raid in Pakistan that killed Bin Laden, the Pentagon’s Joint Special Operations Command, the hub for classified Army and Navy commando units, had its best chance to kill Mr. Awlaki as he moved around Shabwa Province. Drones and Marine Harrier jets fired at his truck, but he managed to escape and took refuge in a cave.

Golly, those JSOC teams sure were unlucky, with Awlaki escaping time after time! You don’t suppose someone tipped him off, do you?

Because, as the WSJ notes, JSOC usually shared any attack information with Saleh’s government.

Since December 2009, the U.S. military’s Joint Special Operations Command, or JSOC, had launched a handful of attacks on suspected al Qaeda gatherings in Yemen. Intelligence for such strikes was largely provided by Mr. Saleh’s government, U.S. officials say, which was consulted by the U.S. military before each counterterrorism operation.

After Awlaki died, Saleh sent word to Awlaki’s father swearing he had had no role in the attack on his son. I would suggest it is likely that Saleh may have, however, had a role in Awlaki evading at least two JSOC attacks.

Now, the NYT is not entirely silent about Saleh’s questionable commitment to targeting Awlaki. It does note that Arab Spring unrest and the June 2011 attack on Saleh gave the US more freedom in pursuing Awlaki.

That June, a barrage of rockets struck the room of the presidential palace where Mr. Saleh was hiding, severely injuring him and effectively ending his rule.

The weakening of Mr. Saleh gave the Americans more latitude for the Awlaki manhunt.

But it doesn’t explain why the US might have greater leeway as Saleh struggled to hold on to power (I suspect some of that will appear in Mark Mazzetti’s book, due out next month). One likely possibility is that Saleh’s physical and political incapacitation gave the US an excuse to bypass the Yemeni President.

The Obama Administration repeats over and over this formula for how its drone strikes are legal under international law.

… the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

The government envisions two possibilities: Either a government permits us to conduct drone strikes as part of a cooperation agreement; this usually involves DOD partnering with the host country’s military.

Or we decide a nation is unable or unwilling to deal with a threat. This qualifies as self-defense and may (though doesn’t necessarily) involve covert operations. Or, as happens with Pakistan, it pretends not to consent and we operate covertly with its approval (potentially up to and including the Osama bin Laden raid).

The NYT piece provides one new explanation for the CIA base in Saudi Arabia: the government of Djibouti imposed certain rules on us that the Saudis were not going to impose.

And, very quietly, the C.I.A. began to build its own drone base in Saudi Arabia. Saudi officials had given the C.I.A. permission to build the base on the condition that the kingdom’s role was masked. And the base took care of a separate problem: the government of Djibouti, where the military was basing its drone operations in the region, put tight restrictions on any lethal operations carried out from its soil. The Saudi government made no similar demands.

I look forward to Mazzetti’s further explanation of what those rules were (in his book), but I wonder whether one of them is that the targeted country consent to the strike. (Update: The report from this weekend suggesting the Brits have a role in the Djibouti targeting may also be a factor in making a Saudi base more appropriate for a covert op.)

That is, it seems that two things happened that set up the Awlaki strike: the Saudis let us build a CIA base that would allow us to conduct technically covert operations without the consent of the government, and Saleh’s struggle to stay in power gave us an excuse to say he was unable to target Awlaki (so we didn’t have to admit he was also unwilling to).

So why would pitching this story as one of Saleh’s incapacitation rather than his unwillingness to cooperate and our subsequent decision to bypass him set up a Presidential speech?

As you’ll recall, the National Journal reported that one of the main reasons the Administration didn’t want to release the OLC memos to Congress is because they spell out the terms of understanding between the US and those governments who let us drone their country.

A key reason for that reticence, according to two sources who have read the memos or are aware of their contents, is that the documents contain secret protocols with foreign governments, including Pakistan and Yemen, as well as “case-specific” details of strikes.

A legal expert outside the government who is intimately familiar with the contents of the memos said the government-to-government accords on the conduct of drone strikes are an important element not contained in the Justice Department “white paper” revealed recently by NBC News. He said it is largely in order to protect this information that the targeted-killing memos drafted by Justice’s Office of Legal Counsel are not being released, and that even the Senate and House Intelligence committees have been allowed to examine only four of the nine OLC memos.

While I suspect there probably are memos — two different memos — that lay the ground rules for signature strikes with both Pakistan and Yemen, this NJ story is meant to explain the Administration’s reluctance to share the OLC memos on Awlaki as well. In the Awlaki memos (both of which, according to the NYT, allow for the involvement of the CIA and therefore covert status), sensitive details about the Yemeni arrangement are just as likely to explain why the US might choose to use CIA to conduct a strike rather than JSOC. And that would probably have everything to do with the remarkable problems we had in pursuing Awlaki while partnering with the Yemeni government.

If Obama’s going to make a speech, up to and including admitting we killed Awlaki, it’s going to be a speech that not only obscures both the evidentiary and legal problems with the killing, but also obscures the degree to which the Obama Administration’s counterterrorism efforts in Yemen have been counterproductive, largely because we let Saleh play us for years.

If Obama’s going to give a speech, it’s going to be a triumphant narrative about nailing a baddie with the help of our international partners whose particular contributions (or obstructionism) shall remain unexplained. And to make that speech, Obama’s going to need to bury a whole lot of evidence that Ali Abdullah Saleh was as much part of the problem as he was any part of the solution.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

But part of it, too, is that the Saudis may not have wanted the intelligence they were feeding us to be fully shared w/DOD. So the CIA does it all, w/Brennan’s close involvement, and they get to protect the things THEY’RE doing in Yemen. And then when they demand we start signature strikes in Yemen, having delivered Awlaki’s head on a platter to us, Brennan feels obliged.

The over-arching question here is where was the good judgement and the skepticism of experienced american officials – nsc/whitehouse, military, or cia (paramilitary).

One answer could be that “the little action in yemen” has nothing of great consequence to do with terrorism and everything to do with oil supplies, the u.s. currency, and happy, satisfied saudi princes.

would someone explain the difference between “targeted killing” and “assassination?” now that the wh-brennan “assassination Tuesdays @ the wh” have moved to the civilian cia, can the famlies of the assassinated bring suit against the civilian cia director and his agency under the 1996 law 118?

also, what is the status of a group of civilians setting up an assinination program in another country that has ties withat government over the years?

Am not convinced that it’s the sensitivity around the US relationship with other countries which is driving the Administration’s refusal to disclose the memos for its killing program. The people, as well as the targets, in those countries are well aware not only of the program, but of their own government’s concurrence. Further, I suspect that their views — pro or con — of our shrapnel-based affection for them are unaffected by the onanism that masquerades as legal justification in the far-away pristine halls of Washington power. The memos would do little more than confirm what the people who see the killing program up-close already know.

It’s Americans who are, by and large, ignorant as to what, exactly, their government is doing and why. And the Administration wants to keep it that way. Knowledge and disclosure would lead to pesky questions (e.g., is what we’re doing even working?), challenges to judgments made, and demands for alternative policy — all those annoying indicia of a democracy. It might even lead to accountability in some tangible way for the people involved. None of these things are to be tolerated by a national security apparatus that’s been in a tumescent state of arousal since 9/11, when it finally and definitively hijacked the republic.